If you’ve read this blog often, you’ve hopefully figured out that I view myself as a practical, pragmatic lawyer who takes a businesslike approach to the practice of law. That means a lot of things, including only providing the amount of “lawyering” that a deal needs – in other words, avoiding “over-lawyering” a deal.
I don’t think you’ll find the word over-lawyering in a dictionary (even a law dictionary), but I think every client knows it when he or she sees it – I just wish every lawyer did. Over-lawyering may be one of the biggest reasons people dislike and avoid lawyers; and here’s another shocker – it’s also one of the biggest reasons lawyers like me dislike working with certain other lawyers. At a minimum, over-lawyering makes deals take longer and cost more than necessary; at its worst, over-lawyering causes deals not to get done.
When I say over-lawyering, you may immediately think I mean a lawyer providing more legal services than necessary in order to produce more billable hours and therefore a bigger legal bill. While that certainly can be one reason for over-lawyering, I’m not talking just about that (in fact, I’m not talking about that much at all, because I find it to be ethically and morally reprehensible). Instead, I’m talking, for example, about the contract that includes provisions that are completely unnecessary under the circumstances, either because they don’t fit the context or because the likelihood of them being triggered is so remote and unlikely as to make them a waste of time and resources. I’m also talking about 3 page paragraphs to describe what can be said in 3 lines.
Most contracts are intended to memorialize the parties’ promises, duties and obligations after there has been a meeting of the minds. The negotiations and ultimate contract should cover those terms and the real risks and likely outcomes and stop there. Say it once; say it clearly; and be done. Anything more is over-lawyering.